Are Private Military and Security Companies Outside the Realm of International Law and Control?

Abstract

Since the cold war, States and the United Nations have been increasingly hiring Private Military and Security Companies to operate in conflict zones and peacekeeping operations. However, their increased use has caused concerns as to their legal status under international laws. This dissertations explains their status under international law and demonstrates why Private Military and Security Company’s personnel are only civilians accompanying the armed forces and why they should never hold the combatant status in any circumstances. This dissertation also goes through the benefits and drawbacks of using Private Military and Security Companies, and why their use can cause accountability issues if they violate human rights and international laws. In addition, the laws and control of Private Military and Security Companies are not to the standards of State armed forces. The dissertation will use articles on the subject of Private Military and Security Companies, the use reference to the Geneva Conventions and its Additional Protocols. This dissertation recommends that the UK and international bodies to reform legislation to specifically include Private Military and Security companies in a manner to regulate their use during military occupation and peacekeeping operations. Any changes or new legislation should be made to allow the hiring State or the UN to have complete control over Private Military and Security Companies during military occupation and peacekeeping operations and ensure that all accountability issues are rectified to allow the burden of responsibility to be upon the perpetrator.

Introduction

Private Military and Security Companies (PMSC) have been accompanying armed forces and have been involved in peacekeeping operations since the end of WWII. When PMSCs accompany the armed forces, they carry firearms, meaning that they are not fully distinct from the armed forces. Moreover, their usage has increased greatly since the end of the cold war.[1] Many PMSCs have violated laws of armed conflict and human rights many times but States are still using them to carry out tasks or operations rather than there own soldiers. The Nisour Square massacre[2] and the DynCorp International taxi shootings are examples of human right violations.[3] However, PMSC personnel who violate international law and human rights cause accountability issues. The aim of this dissertation is to determine the legal status of PMSCs and if they effectively controlled under international law.

This dissertation will include analysis to explain the importance of the Montreux Document, why States still use PMSCs even though they have a reputation of violating international law and human rights, why it is important for PMSCs to not carry firearms, why PMSCs do not in any circumstances hold the status as combatants and why PMSCs and the hiring state avoid accountability for human rights and international law violations. This analysis will be used to determine if PMSCs are outside the realm of international law and control because if PMSCs are not following the laws and customs of war and if they are not being held responsible for crimes they have committed, then they are are outside the realm of international law and control. These questions will be answered analysis the Geneva Conventions and its Additional Protocols, and court cases involving PMSC personnel who has violated human rights but have not been, or yet to be, held accountable for those violations.

The dissertation will be split into two chapters. In the first chapter of this dissertation, journal articles on the debate on the status of PMCs and their place in international law will be explored. Journal articles will provide a comprehensive discussion on the topic of PMCs and their evaluation can be used for the exploration. In addition, the Montreux Document will be included as it provides comprehensive information regarding PMSCs. This will achieve the first objective because this dissertation will use it to discuss matters relating to the status of PMCs and use the findings as a foundation for further discussion for objective two. In the second chapter, scenarios where PMCs have violated human rights and LOAC will be researched and analysed. This includes the case regarding the incident of Nisour Square Massacre[4] and the DynCorp International taxi shootings.[5] Other cases will be included to demonstrate cases where there have been accountability issues.

In addition, this dissertation will include UK laws and provide recommendations for the UK and international legal bodies. These recommendations will be included to encourage the UK and international legal bodies to regulate PMSCs to allow such companies to be effectively controlled.

CHAPTER ONE – PMSC Status

The Montreux Document and the Status of Private Military and Security Companies

The Montreux Document was created in 2008 to clarify existing obligations of States and other actors, those other actors being PMSCs, under international human rights law (IHRL) and international humanitarian law (IHL).[6] Its intention is to promote respect for IHRL and IHL.[7] The Montreux Document is split into two parts; part 1 deals with international legal obligations relating to PMSCs and part 2 deals with good practices with them. Moreover, 53 States, including the UK, USA, Russia, China and France, support the Montreux Document, this implying that the member States agree with its information that it provides.[8]

The Montreux Document is important because of its guidelines on using and obligating PMSCs and the information it provides on the clarification of the legal obligations of PMSCs. Moreover, it could be the 53 States that agree with the Montreux Document are contributing to the illegal use of PMSCs, if PMSCs are outside the realm of international law.[9] This means that although the 53 States agree with the regulations and guidelines it provides, any States that are illegally using PMSCs are effectively allowing these contractors to violate those laws, even though the State understands and agree with regulations regarding PMSCs.

The definition of a PMSC as given by the Montreux Document

The Montreux Document defines PMSCs as ‘private business entities that provide military and/or security services, irrespective of how they describe themselves.’ It then outlines, in its definition, what military and security services include:

Military and security services include, in particular, armed guarding and protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel.[10]

The document recognises that ‘[n]o IHL or human rights treaty mentions [PMSCs] specifically’, this, therefore, being patently supported by the 53 States. The document also mentions that ‘States often discover that they lack the necessary domestic legislation to deal with PMSCs’.[11] However, it did not specify which States.

The status of PMSC personnel as given by the Montreux Document

The status of PMSC personnel is determined by the situation of events carried out by that individual, as given by the Montreux Document. Statement 24 of the Montreux Document states ‘[that the] status of the personnel of PMSC is determined by international humanitarian law, on a case-by-case basis, in particular according to the nature and circumstances of the functions in which they are involved.’ Kalidhass presented in his 2016 article,[12] that PMSC employees could be civilians, combatants, or mercenaries, depending on their actions and involvement in hostilities. Kalidhass describes that PMSC personnel are combatants when they are integrated into an armed force to engage in conflict, civilians when their role is to accompany armed forces with logistical support, or mercenaries when they directly participate in hostilities without being part of an armed force of a party to the conflict. Kalidhass, however, in his entire article did not make reference to the Montreux Document. Moreover, the Montreux Document goes on to explain that:

[i]t cannot be said, for instance, that PMSC personnel are always combatants just because they carry weapons; nor can it be said that they are always civilians because they are not members of the armed forces. The status of PMSC personnel depends on the contract under which they are employed and on the services they provide.[13]

The Montreux Document defines the meaning of ‘directly participating in hostilities’:

participation in combat operations or activities aimed at weakening the enemy’s military capacity and specifically meant to support one party to the conflict against the other. Guarding military bases against attacks from the enemy party, gathering tactical military intelligence, operating weapons systems in a combat operation are examples of direct participation in hostilities in which PMSC personnel may be involved.[14]

However, one thing that this document seems to lack is the description and importance of distinction as provided by Article 48, Protocol I of the 1949 GCs. The Article States:

…Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.[15]

PMSCs in most cases carry firearms openly.[16] The Montreux Document also states that PMSC personnel carry weapons. If PMSC personnel carry weapons, especially in military territory, how can the invading force (enemy) know whether the person carrying weapons is a civilian? What if the PMSC personnel is wearing green civilian clothes and still carrying a weapon for their protection. This has enhanced their appearance as a combatant. If the PMSC personnel did not carry weapons in the first place, disregarding that they use them for emergencies, then the enemy state should not shoot or attack these persons because they are then their civilian appearance becomes definite and completely obvious. In addition, if they do not carry weapons, it is also patent they are not participating in any hostilities so therefore not a subject of attack. Moreover, the enemy or enemies who then kills or attacks those PMSC personnel can then be charged with the offence of attacking civilians; the Rome Statute Article 8(2)(b)(i), states ’[i]Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities’ is a serious war crime.[17] However, the home state and the foreign state may come to a Status of Forces Agreement (SOFA), whereby the two states can agree on the uniforms of their armed force personnel.[18] Moreover, statement 4.2.2 of the UK Joint Service Manual of the Law of Armed Conflict provides that combatants and non-combatants have similar appearance, but not identical.[19]

Combatant status

The Montreux Document states that PMSC personnel who are ‘formally integrated into [an armed] force’ are therefore members of the armed force and qualify for the status of a combatant.[20] However, the Document does not explain the meaning of ‘formally integrated’. It could be assumed that the words ‘formally integrated’ mean being a proper member (soldier) of an armed force, like the army, air force or navy, whom has been properly enlisted into the armed forces by enrolment, and put under an oath of allegiance to perform their duties.[21] It is arguable that PMSCs are ‘formally integrated’ into an armed force when they become a permanent regiment of an armed force. PMSCs have to abide by international law and State obligations and are subject to prosecution if they commit crimes under national or international law.[22] Article 43(1), Protocol I of the 1949 GCs, states that, ‘[an] armed force of a Party to a conflict consists of all organised armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates’; and Article 43(2) states that ‘[m]embers of the armed forces are combatants… [and] have the right to directly participate in hostilities’.[23]

Some states may determine whether PMSC may fall under Article 43(1). If a State decides that PMSC does not full under that Article, then it could be arguable that the PMSC personnel hired by that State are not combatants as they are not members of its armed forces.[24]

Nevertheless, it is challenging when attempting to determine if PMSC personnel are combatants. They could be combatants in the circumstances of a levée en masse.[25] A levée en masse is ‘where inhabitants of a territory not under occupation… on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organise themselves’.[26] It could be argued that the inhabitants, in this case, would be the PMSC personnel when they use their weapons to protect themselves from the invading enemy. However, occupation in this case means property not belonging to the military. Therefore, the inhabitants are persons who live or occupy their own private territory, which is not military controlled.

The Montreux Document states that those circumstances of a levée en masse are what territorial states and home states have to take into account.[27] Those circumstances also include ‘[g]uarding military bases against attacks from the enemy party, gathering tactical military intelligence, operating weapons systems in a combat operation’.[28] However, the document notes that PMSC personnel can be liable for prosecution for taking direct part in hostilities if domestic law criminalises such conduct.[29]

The Montreux Document agrees that PMSC personnel ‘are entitled to Prisoner of war (POW) status in international armed conflict if they are persons accompanying the armed forces meeting the requirements of article 4A(4) of the Third GC’. This statement is true as that article states:

Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.[30]

If the Montreux Document states that they are persons accompanying the armed forces as per Article 4A(4), then they are not members of the armed forces. However, persons who accompany the armed forces are not allowed to carry arms, openly or not. A simple reading of Article 4A(2), states:

Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

1. that of being commanded by a person responsible for his subordinates;

2. that of having a fixed distinctive sign recognizable at a distance;

3. that of carrying arms openly;

4. that of conducting their operations in accordance with the laws and customs of war.[31]

Part (c) of Article 4A(2) describes that members of other militias and members of other volunteer corps can carry arms openly. If it were the same for civilians accompanying the armed force, as described in Article 4A(4), then that paragraph would have specified this. However, it could be argued that their weapons are handed to them because Article 4A(6) states that inhabitants can spontaneously take up arms to resist enemy forces. Article 4A(6) states:

Inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.[32]

However, the Montreux Document is clearly defining PMSC personnel as persons accompanying the armed forces as per part (4) rather than inhabitants as described in part (6).

However, the drafters’ intention behind the revision of Article 43(1), Protocol I of the GCs, was to avoid reference to States’ domestic laws on who and who cannot be part of the armed forces. Some States were arguing they did not have a regular armed force and only relied on guerrilla troops. [33] Article 43(1) aimed at all groups, which had a link with the armed forces, and if the group operation is under command by that armed force, then they were to be considered members thereof.[34] However, the wording of the Article outweighs its intention. If the Drafters wanted to expand the definition of Article 43(1), they would have, or should have, done so.

Mercenary status

Some authors of Articles analysing the status of PMSC personnel will mention PMSC holding the status of mercenaries.[35] For the purpose of discussing and analysing PMSC holding the mercenary status, Article 47, Protocol I of the 1949 GCs, states:

1. A mercenary shall not have the right to be a combatant or a prisoner of war.

2. A mercenary is any person who:

3. is specially recruited locally or abroad in order to fight in an armed conflict;

4. does, in fact, take a direct part in the hostilities;

5. is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

6. is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

7. is not a member of the armed forces of a Party to the conflict; and

8. has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.[36]

The Montreux Document states that the definition of mercenaries ‘excludes PMSC personnel whom are not contracted to take direct participation in hostilities.’[37] The document takes into consideration the difficulty in proving motivation, as provided in Article 47(2)(c).[38]

The word ‘and’ in the mercenary definition, between part (e) and part (f), incorporates the definition as a whole, meaning that every element of that definition must be satisfied to define a person as a mercenary.

Determining whether such personnel can fulfil the whole definition of a mercenary can be a challenge when determining it for PMSCs. PMSCs are not contracted to fight enemy forces, however, if PMSC personnel arm themselves with weapons, can it be assumed that these weapons are signed out to them in case a ‘fight’ breaks out? Are PMSC not then hired to police areas and only fight when enemies contact them? The simple answer to the latter question is negative. PMSCs personnel should not be carrying weapons because they are not contracted to participate in any form of hostility.

Neither the Geneva Conventions nor their Additional Protocols define what it meant by direct participation in hostilities, as given in part (b) of Article 47 other than the brief description provided by the Montreux Document.[39] However, when PMSC comes under contact with the enemy, such as the levée en masse circumstance, which is a patently a hostility, and the PMSC reacts towards the enemy with their weapons, that is also a direct participation.

The difficulty in proving Article 47(2)(c) is determining whether such persons are motivated by private gain or extra payments by the hiring State. If the PMSCs personnel are being paid more than soldiers of the same state and of similar rank, then it could motivate a PMSC and its personnel; also, the PMSC and its personnel must be promised material compensation (compensating loss of goods). British Army soldiers work 10 hours a day and on some occasions soldiers work weekends.[40] For this purpose, it is fair to say British Army soldiers work 50 hours a week. A private gets paid between £18,125 and £20,727 annually.[41] G4S is a company that has worked alongside the British Armed Forces during the hanistan war.[42] They are a PMSC that was paid £69,000,000 for Mobile and Static Guarding between March 2010 and February 2013.[43] A G4S security guard gets an average pay of £8.97 an hour.[44] If G4S has worked along side of the British Armed Forces to secure buildings or protect persons, then it would be no doubt they would also work on average 50 hours a week. 50 hours a week times by the 52 weeks a year, it gives a total of 2600 hours a year. £8.97 times by 2600 hours gives an annual wage of £23,322. That is between £2,595 and £5,197 a year more than a private. Privates can do guarding jobs just as well as G4S security guards. This can no doubt motivate soldiers to leave the army to join such PMSCs with higher wages or encourage civilians to join PMSCs rather than join an armed force of any State. However, can the excess wage constitute private gain? Although the wage could be substantially excessive to that of the regular soldiers’ wage, it is arguable on two sides that the excess wages can be a private gain, or cannot be a private gain; i.e, the term ‘private gain’ could be how the receiver interprets this term or it could be how another person perceives this term. For example, someone could argue that money is private gain because that money is private to them and it is the money that is the gain; however, it could be argued that money is not a private gain because it is part of our everyday lives but finding gold or something valuable as a place or scene is a private gain. So determining motivation by private gain is a difficult question. Moreover, the UK government refuses to release any such contracts or any other document, involving the UKs contracts with any PMSC.[45] This means determining any promises of material compensation in ‘excess of that promised or paid to combatants of similar ranks and functions in the armed forces’[46] is very difficult, even if by retrieving the documents through a process by the Freedom of Information Act 2000.

If the Montreux Document is correct, then PMSC are not members of the armed forces but just persons accompanying the armed forces. This clearly satisfies part (e).

If the PMSC is not a member of an armed force, but is hired by the state that is a party to the conflict, then that will satisfy part (e) and (f) of Article 47. To explain the latter in last sentence, part (f) has a double negative, that is ‘…has not been sent by a State which is not a Party to the conflict…’[47]

Civilian Status

The definition of a civilian is defined in Article 50(1), protocol I of the 1949 GCs, as being:

…any person who does not belong to one of the categories of persons referred to in Article 4A (1), (2), (3) and (6) of the Third Convention and in Article 43 of [the additional protocol I of the 1949 GCs]. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.[48]

Article 4A provides certain personnel POW status. Article 4A (1), (2), (3) and (6) states:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

(2)[49]

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(6)[50]

It is a questionable doubt as to whether a person is a civilian. So if authors question PMSC status and doubt as to what status they have, should they then be regarded as civilians as per Article 50(1)? It seems as though that is what the Article it is indicating. However, that part of the definition is a guidance for a military soldier who is targeting an enemy and doesn’t know whether the person whom they are targeting is a civilian, so the soldier doesn’t make a mistake by shooting a civilian.

The Montreux Document states that PMSC personnel are protected as civilians if they are not members accompanying the armed force. In this case, they are protected from military attack and capture.[51] Statement 26(b) in Part 1 of the Montreux Document states that PMSC personnel are:

[p]rotected as civilians under international humanitarian law, unless they are incorporated into the regular armed forces of a State or are members of organized armed forces, groups or units under a command responsible to the State; or otherwise lose their protection as determined by international humanitarian law;[52]

Although PMSC personnel in most cases qualify as civilians, they can lose that status if they directly participate in hostilities.[53] The Montreux Document states that armed PMSC personnel are also considered a civilian, until they directly participate in hostilities.[54] This is supported by Article 51(3), protocol I of the 1949 GCs which states ‘[c]ivilians shall enjoy the protection [as civilians], unless and for such time as they take a direct part in hostilities.[55] However, the Montreux Document states the PMSCs are military and/or security providers regardless of how thy describe themselves; it also states that PMSCs services included armed guarding and protection of persons and objects. It is patently a contradictory problem when PMSCs arming themselves to protect persons and objectives if they are not allowed to participate in hostilities and are not subject to attack. If PMSC personnel are guarding persons or objects during military occupation, they are patently protecting these persons or objects from invading forces. When these invading forces open fire to these persons, both PMSC personnel and whom they are protecting, and objects, this then becomes hostility. If they are armed, then there intention is to use these weapons for the purpose of protecting these persons or objects during hostility situations, such as for the purpose of using these weapons against the invading force, rather than for the purpose of self-protection.[56]

The Montreux Document agrees that PMSC personnel are only civilians when they are not accompanying the armed forces. However, this is not the case. The civilian status as given by Article 50(1), protocol I of the 1949 GCs, excludes Article 4A(4) of the third GC which is persons accompanying the armed forces. Article 50(1) mentions that civilians are person who do not belong in the categories of Article 4A(1), (2), (3) and (6) of the third GC.[57] If you apply the opposite of ‘not belonging’ to the rest of Article 4A, it will then become persons who belong in the categories of Article 4A(4) and (5) of the third GC – the remaining parts of Article 4A.[58] Therefore, Article 50(1) is patently implying that civilians are those who belong in the categories of Article 4A(4) and (5) of the third GC. This brings a probable to the Montreux Document and the States who agree with this document; this is because the Montreux Document mentions that PMSC personnel are not civilians when they are accompanying the armed forces as per Article 4A(4). As established, persons who accompany the armed forces are civilians. So if PMSC they are civilians, as per this dissertations analysis, and the Montreux Document says they are not civilians because they are persons accompanying the armed forces, then is the Montreux Document saying they are either combatants or mercenaries?

Are PMSC Personnel Permitted to Carry Firearms?

A PMSC personnel who is a civilian accompanying the armed force that carries arms openly causes a problem with States and International Law. The Montreux Document has pointed out that PMSC carries firearms for their protection. However, this dissertation has described that persons accompany the armed forces should not carry arms openly because Article 4A(4) of the Third GC would have described that these persons carry arms openly, as described in Article 4A(2) of the Third GC. This causes a problem for armed forces that allow these persons to carry arms openly, whether it is for their protection or not.

A problem also lies with the UK, who allows PMSC personnel to carry firearms openly. The UK agrees with the Montreux Document that PMSC personnel are persons accompanying their armed force; and as already mentioned, persons accompanying the armed forces cannot carry firearms. The UK has its only enlistment laws on persons who formally integrate into their armed forces, as given in the Armed Forces Act 2006, Section 328, and the Reserve Forces Act 1996, Schedule 1. What this means for the UK is that the PMSC personnel can only be members of the armed forces if they formally integrate into it by they enlistment process. A reading from further legislation, that is the Firearms Act 1968, Section 54, shows that only persons in service of Her Majesty can acquire a firearm and ammunition for the purpose of his service. Firearms Act 1968, Section 54(2)(a), states, ‘a person in the service of Her Majesty duly authorised in writing in that behalf may purchase or acquire firearms and ammunition for the public service without holding a certificate under this [Firearms] Act [1968]’. The UK laws regulate its military personnel to use firearms during service. However, as already mentioned, persons accompanying the armed force are not members thereof, and both the 1949 Geneva Conventions and UK Legislation both only regulate military personnel to use firearms. Therefore, PMSCs and its personnel hired by the UK are not permitted to carry firearms.

CHAPTER TWO – PMSCs in Armed Conflict

States use of Private Military and Security Companies in Military Occupation

Many States use PMSCs during military occupation and conflicts to secure places or persons. In 2008, there were as many as 230,000 non-US PMSC personnel and 40,000 US PMSC personnel deployed in Afghanistan contracted with the US alone, compared to 180,000 US soldiers.[59] That is 90,000 more PMSC personnel than US soldiers operating in Afghanistan under the US command. The UK also has PMSCs that it has used in different countries for military purposes. These are Aegis Defence Service in Yemen for static security and supervision,[60]and Control Risks Group in Libya for static and mobile security. The UK has also hired PMSCs that are not registered in the UK.[61] These are Honor and Laurel, HQ based in Colombia, [62] used in Iraq for static guarding,[63]and GardaWorld, HQ based in Canada,[64] used in Iraq and Libya for mobile and static security and guarding.[65] The US also has many PMSCs such as Academi, previously known as Blackwater,[66] and Northbridge Services Group.[67]

The British Association of Private Security Companies (BAPSC) recognises that there is a need for an international regulation of PMSCs.[68] The UK House of Commons released a report stating that national legislation needs to be put in place for the recruitment of PMSCs and their use in conflict.[69] However, a security firm can register as an approved contractor under the Private Security Industry Act 2001. Section 14 of that Act registers security firms as an approved contractor. Section 24 allows the Secretary of State (SS) to make orders to security firms; these security firms must comply with the orders given by the SS. Schedule 2 of that Act allows these firms to do manned guarding,[70] immobilisation of vehicles,[71] and conduct private investigations.[72]

It could be that Private Military Companies (PMCs) are hiding behind the name of Private Security Companies (PSCs), allowing them to be legally approved contractors in the UK. It could be that someone may interpret a PSC as a PMC when the company is accompanying the military, hence the name change from ‘security’ to ‘military’. However, States, including the UK, recognise that a PMC does exist because the States are demanding international obligations regarding the recruitment and use of PMCs.[73] Note that PMSC is regarded as Private Military and Security Company.[74] Moreover, the UK currently lacks any legislation or any form of obligation to regulate the use of PMSCs in armed conflict or any form of military occupation.[75]

A 2014 report, by Ulrich Petersohn, regarding the impact of mercenaries and PMCs, has found surprising results. The presence of PMCs and mercenaries during armed conflict has indicated an increase in the severity of that conflict compared to when they are not engaged; increase of severity means the increase of human death and building destruction. One factor responsible for the correlation was the relationship between the presence of PMSCs, and mercenaries, and the presence of natural resources. In addition, whether or not mercenaries are present, there is still an increase in the severity of conflict with the PMSCs present.[76] So why are States continue to hire PMSCs if the severity of the conflict increases? Is their presence and use in conflict an advantage?

Advantages and Disadvantages

Many States and the United Nations (UN) use PMSCs for peacekeeping operations. The States and UN use PMSCs because of their many advantages over State armed forces. They are able to provide quick response, which can be useful for when genocide is predicted, this buying time for State armed forces to commit to further planning. They are flexible and cost effective, thus saving States a lot of time. PMSCs provide services, including mobile and static guarding, for more than one State. This is an advantage because of the fact that they are impartial, and that only one state at a time can employ them. The companies usually have no connection with the hostility or disaster. They are easily controlled by their contract terms because each contract written is specific to the objectives of the hiring State. PMSCs are more likely to achieve their objectives by being contracted on “no-success means no pay” terms. Having this form of contract can encourage the PMSC to complete their objectives, as per the contract terms. PMSCs can provide professionally trained personnel for specific job roles.[77] As apposed to advantages, PMSCs also have their disadvantages. They may only be motivated to take part in a State’s operation for the benefit of the company, i.e. for the money,[78] whereas, a State’s armed force operate for the benefit of the country. This is a disadvantage because PMSCs may not be fully committed to the operation, therefore not being as effective as they could be. In addition, PMSCs may do the job slower to extend the contract for extra pay, and cut costs by using less equipment and personnel. This is a disadvantage because this can demonstrate that the PMSC is only motivated by money, rather than the benefit for the hiring State. PMSC personnel can quite the company at any point unlike a soldier who cannot just quite the armed forces. This is a disadvantage because if PMSC personnel suddenly leave the company, it can make the operation that they were taking part in less effective and potentially take longer to achieve it. PMSCs may only do jobs that are written in the contract so therefore may ignore sudden local hostile situations like genocide if it breaks out, if genocide is not part of their contract. The advantages and disadvantages can outweigh each other, depending on the PMSCs performance, effectiveness and credibility.

Operations Involving Private Military and Security Companies

PMSC has been on many successful operations, including Operation Storm in Croatia and helping Angola to regain control over its State. However, they have been known to violate human rights. The Nisour Square massacre and the DynCorp International taxi shootings in Bagdad.

Successful Operations:

Operation Storm

Operation Storm was led by Croatia in 1995 with Military Professional Resources Incorporated (MPRI), a US PMSC, and other State armed forces working alongside their forces. The objective for Operation Storm was to separate Serbia’s control over Krajina, in Croatia. Croatia led three offences to defeat the Serbian army to regain control over Krajina and only on the third offence, that one being Operation Storm, was a victory. The UN posed a ceasefire on each offence but only after Operation Storm was successful was when Croatia agreed to a permanent ceasefire.[79]

MPRI got permission by the US to operate alongside Croatia. MPRIs role in Operation Storm was to maintain and form a proper structure for the Croatian army. They retrained the Croatian army to use US military tactics, including air and infantry tactics, and manoeuvre warfare. MPRI also played a major role in the planning of Operation Storm.

It was due to the help of MPRI as to why the Croatian’s Operation Storm was a success. Within a few days in August of 1995, the Croatian forces, along with its supporting forces and MPRI, ejected the Serbian forces and over 150,000 Serbian civilians away from Krajina with few deaths. Croatia then gained re-control of Krajina.

This operation has shown that MPRI was able to provide legitimate training for a State’s armed force without having to directly participate in hostilities.

Angola

In 1975, Angola gained its independence from Portugal. Since the independence, there has been a civil war between two factions: the Government of Angola, Movimento Popular de Libertação de Angola (MPLA - The People's Movement for the Liberation of Angola), and a rebel group, the União Nacional para a Independência Total de Angola (UNITA - The National Union for the Total Independence of Angola). UNITA gained control over large parts of Angola by the 1980s.[80] In 1991, the two sides signed a peace treaty that included a ceasefire. Angola then called for the UN to monitor the ceasefire. Angola asked for an election. The UN monitored this election. Before the votes were published. UNITA disputed the votes because the party they supported received less than 50%. Instead of UNITA calling for a second vote, they responded in deadly force. Within 24 hours, a conflict broke out between MPLA’s Angolan Armed Forces (FAA - Forças Armadas Angolanas) and UNITA. FAA maintained control of the capital of Angola while UNITA was in control over the majority of the countryside. The UN then left Angola, which after a mere 300,000 deaths occurred from the result of conflict. During the conflict, Angola got support from a PMSC called Executive Outcomes (EO).[81]

EO’s role in Angola was to maintain oil, gas and diamond fields, protect MPLA and encourage UNITA for peace, train and accompany the FAA. EO was cheaper than the UN to operate. The EO cost $40m a year while the UN cost $380m a year for the same job. EO assisted the FAA to push away UNITA from the oil, gas and diamond fields allowing the production to be for the benefit of Angola rather than UNITA.[82]

The FAA was able to push back UNITA, regain control of Angola, and got UNITA to negotiate a peace treaty. This was due to the help of EO. However, EO did fail in continuing peace and security in Angola.[83]

This conflict has shown that EO was able to provide a cheap and effective service and proved to be a legitimate company. They were promt in providing services immediately after the UN left. However, they lost credibility when they failed to continue peace and security. It is unknown if EO were armed or directly participated in the conflict. However, it is arguable that they were because they accompanied the FAA when pushing UNITA away from the oil, gas and diamond mines.

Human Rights Violations by Private Military and Security Companies

Nisour Square Massacre

On September 16th 2007, four armed men working with Blackwater (now known as Academi), a PMSC, shot 17 unarmed civilians and wounded 24. The massacre took place at Nisour Square, Baghdad. The US contracted Blackwater during the Iraq war when the massacre took place. The US has problems on accountability issues. The US lacked any system to hold the four men accountable for their actions. Since the massacre, Blackwater has changed its to Academi.[84]

The name conversion from Backwater to Academi is convenient considering it was after the Nisour Square incident. It is arguable that the company had a name change so the new name can give the company a new start to gain credibility. Academi’s 2015 Code of Business Ethics and Conduct states that Academi will comply with all laws and regulations,[85] and will take responsibility for all their performances.[86] Academi has had released two versions of Codes of Business Ethics and Conduct, the first was released in 2013.[87] This was 6 years after the Nisour Square incident. There are no searchable traces of previous codes of business ethics and conduct even with the previous name Blackwater. In light of the evidence, it is as though Academi had a name change and released its Codes of Business Ethics and Conduct because of the Nisour Square incident to regain credibility.

In 2014, a jury at Federal District Court came to a guilty verdict for the four guards, and then as a result was convicted and sentenced. The sentence took place 7 years after the incident. The trial took this long because there was little forensic evidence linking the guards to the victims of the incident other than statements from witnesses at the scene.[88]

It seems very unlikely that there was little evidence considering the four guards shot 17 victims dead and wounded 24. This means there were at least 41 bullets to link the rifles involved in the shootings. Every bullet is unique to the firearm that discharged it. A firearms bolt and assembly (bolt) places a round into its chamber at force to keep the round sturdy in place. The bolt has ligatures and grooves from the cutting process it goes through. When the bolt places the round into the chamber, it leaves an inverted impression of the ligatures and grooves on the butt of the round. When the firer pulls the trigger, a hammer is released and hits a pin; this pin strikes the round, which also leaves an impression mark. The round then discharges the bullet from the casing, and travels down the barrel. When the bullet is discharged, a unique mixture of gunpowder is ignited and the bullet is forced down the barrel by the pressure of the explosion. Gunpowder is traceable and is usually found on victims at close range, and the firer’s hand – from holding the gun. The barrel has spiral grooves, known as rifling, which are unique to a make of a firearm, but not unique to every firearm. When the bullet travels down the barrel, an inverted impression, from the rifling of the barrel, is transferred on to the bullet. The round then travels in the direction that the firearm was pointing. Evidence can be found from the gunpowder on the firer’s hands to link the firer to the rifle. The grooves on the bullet and the impressions of the ejected round can link the empty case of a round to the firearm that discharged it. The ejected bullet can be traced back to a make of the firearm that was likely to discharge it; this is done by the calibre of the bullet and the number and angle of the grooves on the bullet. The combination is enough evidence to link the firer to the shooting.[89] It is very unlikely that there was little evidence to link the firers to the shootings other than witnesses, considering there were at least 41 rounds fired and 4 rifles used (1 per guard). This could be the result of forensic scientists doing little to collect evidence, or the scene was “cleaned up” before forensics arrived at the scene.

It is arguable that the years it took to convict the guards were an unnecessary delay. This would be a case necessary for the International Criminal Court (ICC) to step in to take control.[90] However, the US prevents the ICC from taking control,[91] by its legislation, American Service-Members' Protection Act 2001.

In spite of that, after 7 years the defendants were still convicted.

DynCorp International – Taxi Shooting

On November 11th 2007, in Baghdad, a guard whom was working for DynCorp International (a PMSC) opened fire on a taxi car, killing the taxi driver. The guard fired 3 shots at the driver. Witnesses reported that the taxi driver showed no signs of threat. An Iraqi Military Sergeant searched the taxi and there were neither weapons nor ammunition. The shootings took place, two months later, near the Nisour Square incident. There were accountability issues that stopped the DynCorp International Company going to any court.[92]

There are no searchable cases to determine if this company, or its employees, were convicted for the crimes. However, It is possible that this company did not take responsibility of the shootings. However, if the forensic techniques were applied, as mentioned in the Nisour Square massacre paragraphs above, then such shootings could have been forensically analysed to bring the perpetrators to justice.

Who’s accountable for violations committed by Private Military and Security Companies?

Combatants are under the responsibility of its State. Article 43(1), Protocol I of the 1949 GCs, states that, ‘[an] armed force of a Party to a conflict consists of all organised armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates’.[93] However, when PMSC personnel, who of which are a civilian accompanying the armed force, perform the same tasks as a combatant but commits crimes under international and humanitarian law, are the hiring States still accountable for those violations?

It could be argued that the perpetrator is responsible for their actions rather that the burden being on the hiring State. In addition, it could be argued that the company is accountable for those violations rather that the State. Considering that States do in fact command its subordinates, and the subordinates are under a command responsible for their conduct, a State is certainly accountable for violations committed by combatants. However, this dissertation has argued that PMSC should not hold the combatant status, but rather the civilian status as they are accompanying the armed force.

PMSC are not an armed force, however, they are part of a Party when they are contracted under a State. A simple read from Article 43(1), which mentions ‘an armed force of a Party to a conflict’,[94] is patently implying that an armed force is part of a Party. Therefore, a Party may consist of more that just an armed force, therefore it may include a PMSC – who is under the command of the Party (the State).

Article 8 of the Draft Article on Responsibility of States for Internationally Wrongful Acts states:

The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.[95]

Although this Article presents that a State is accountable for an illegal act committed by a person, it is impractical in circumstances when the person committed the act without being commanded to do so. In addition, this Article is aimed at persons under the states control, and the State only being accountable if such actions were conducted under the States control or command.[96] Therefore, the State should be liable to pay compensation that is proportionate to the loss or damages. However, Article 91, Protocol I of the 1949 GCs, states:

[a] Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.[97]

Article 91 shows that a State shall be responsible to any violations under international law that the State commits. However, the State is only liable for crimes committed by persons if they are part of its armed forces. As mentioned above, this is contradictory to Article 8 of the Draft Articles on State Responsibility. This is because Article 8 states that a State shall be liable for crimes committed by persons under its control, whereas Article 91 states that a State shall only be liable for crimes committed by persons if those persons belong to its armed forces. As argued in Chapter One, PMSC personnel are not members of the armed forces but persons accompanying them. Nevertheless, Protocol I of the 1949 GCs is an international treaty whereas the Draft Article is not albeit the Draft Article was adopted by the International Law Commission and submitted to the UN General Assembly. This means that Protocol I is a piece of international law the must be abided by.

PMSC personnel can be held liable for the crimes they have committed under international law. Article 25(1) and (2) of the Rome State of the ICC 2002 states:

1. The Court shall have jurisdiction over natural persons pursuant to this Statute.

2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute[98]

The International Criminal Court has jurisdiction over States whom are a party to the Rome Statute. Article 12(1) of the Rome Statute states that ‘[a] State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court…’[99] However, the ICC jurisdiction is limited to crimes of genocide, crimes against humanity, war crimes and crimes of aggression.[100] Therefore, the ICC may investigate crimes committed by PMSC personnel those crimes fall under jurisdiction of the ICC. However, the ICC cannot exercise its criminal jurisdiction if the PMSC personnel’s home or hiring State is not a party to the Rome Statute.

If a PMSC personnel’s home or hiring State is not a part of the Rome Statute, then the State shall be liable for those violations unless the State can prosecute the perpetrators under its own jurisdiction.

The State or the PMSC personnel shall take responsibility for violations under international law, however, not all perpetrators are brought to justice, or convicted for their crimes. There have been many cases brought to court but have found accountability issues during the trial, including Al-Quraishi et al v Nakhla et al,[101]Al-Shimari v CACI,[102] and Saleh v Titan.[103] All these cases were of the same offence by different person within the same company.

The most relevant case that arose legal issues was the one of Al-Quraishi et al v Nakhla et al.[104] An appellant, Haidar Muhsin Saleh, brought a lawsuit against a PMC, Titan Corporation (now known as Engility).[105] Titan allegedly conspired with US military to illegally detain 72 Iraqi civilians to torture the civilians to obtain intelligence. There were allegedly 20 cases of rape, torture and serious violence towards these civilians.[106] The case was held in court three times. The first two cases where deferred until further facts arise because the courts were unable to determine whether the PMC had immunity under the US and Iraqi laws.[107] The defendants’ appeals that they were entitled to immunity while the plaintiffs challenged the courts jurisdiction because the decision was deferred until light of new facts arise to prove immunity. However, the defendents argued that the courts previous final determination that the ‘law of war immunity (i) does not apply to government contractors, (ii) does not apply to suits brought in U.S. courts, and (iii) does not extend to violations of the law of war.’[108] This means that the immunity did not apply to Titan, nor does it to extend to war crimes. Therefore, immunity only extends to states and crimes that are not war related. The court rejected the plaintiffs’ appeal that their claims could not overall previous decisions by higher courts from other cases, that being the case of Al-Shimari v CACI,[109] and Saleh v Titan.[110]However, the decision of the case was not a final decision, therefore facts can still arise to prove or disprove the case.

This case of Al-Quraishi has shown many legal issues. Laws are not written to include nor exclude PMCs. Therefore, any facts to prove this case may then not be sufficient to prove nor disprove the case. This is because the case was arose on the objection that Titan was entitled to immunity, but the decisions are that immunity does not apply to contractors. However, the courts still concluded that there must be more facts to prove immunity, but the decision clearly states that immunity does not apply to PMCs. This case appears to be another one of insufficient evidence to prove or disprove cases. In the Nisour Square incident, the case took many years for defendants to be charged. This could be the same for the Al-Quraishi case.

States and PMSCs are both liable for the war crimes they commit, however, there are many cases where proving liability is either deferred or dismissed due to lack of evidence. But how much, or what type, of evidence is needed to prove such cases? It is the issue of evidence gathering and evidence value that appear to be where PMSCs and States can prevent liability or prolong the culpability for crimes committed by PMSC and their personnel.

Conclusion

PMSC personnel can be in situations where they must take part in hostilities in order to defend themselves. However, this could be minimised if PMSC personnel do not carry any large firearms and any form of equipment or clothing that could mistake them to being a combatant rather than a civilian. This dissertation has described that it is against UK law for PMSC personnel to carry firearms. This is because the Firearms Act 1968 only regulates UK combatants to use a firearm for purposes related to Her Majesty’s Service. In addition, this dissertation has described how PMSC personnel are only civilians accompanying the armed force and are, or should be, forbidden to hold the combatant status. It is the combination of international law and UK law that forbids PMSC personnel from using firearms for Her Majesty’s Service. However, under international law, civilians are permitted to take up arms to resist invading forces but only if the territory is not controlled or occupied by the military.[111] This means that PMSC personnel are forbidden to take up arms to resist enemy forces if they are guarding a territory occupied by the military, therefore it is the duty of a soldier, rather than the civilians who only accompany the armed forces, to prevent invading forces.

PMSC personnel cannot hold the combatant status unless a State formally integrates the company or the company’s personnel into its armed force, therefore making them permanent members of its armed forces. However, PMSC personnel are entitled to POW status. This is because, although they are civilians, they accompany the armed forces.

The civilian status causes a problem. Although PMSC personnel are civilians accompanying the armed forces, they should not be targeted. A problem therefore rises when PMSC personnel carry firearms, therefore not fully differentiating themselves from the military. It is the distinction problem that could mislead enemy forces to believing those persons are combatants rather than civilians. If PMSC personnel fully distinct themselves, it could prevent them from being targeted. This could be achieved if the PMSC personnel do not carry firearms or anything military related. Additionally, the civilian status can cause confusion upon capture. As stated, PMSC personnel are civilians accompanying the armed force; if they get captured, they should be treated as POW and not as civilians.

There have been many cases where PMSC have been an advantage for States and the UN; however, some companies have been known for some serious human rights violations. Some courts have failed to hold PMSC personnel, who have violated human rights and international law, accountable for their actions due to loopholes and lack of regulations regarding PMSC in conflict and peace keeping operations. An example is the case of Al-Quraishi et al v Nakhla et al.[112]It is true that both a State and the PMSC can be held liable. However, lack of legislation and treaties properly regulating PMSCs causes accountability issues, therefore leaving loopholes for States and PMSCs. This could be overcome if international laws and State laws specifically include PMSCs, therefore allowing such perpetrators to be held accountable. It is these accountability issues that show lack of international control over PMSCs.

PMSC personnel can quit the company for whom they work, unlike soldiers, who cannot just quit the armed forces. Even with proper contracts, these persons can leave the company, therefore giving a complete disadvantage over soldiers. It is this ability that also shows lack of control of PMSC personnel.

In conclusion, PMSC personnel are outside the realm of international law and control. PMSC are outside the realm of international law due to many reasons. PMSC personnel should not carry firearms and they must fully distinct themselves from the military. PMSCs are also entitled to POW status. However, even if a State law permits PMSC personnel to carry firearms, they should not in any situation whatsoever take direct participation in hostilities. PMSC personnel are outside the realm of international control due to many reasons. Although international law forbids these persons from taking direct participation in hostilities, they have been known to do so. They continue to carry firearms and they do not fully distinct themselves from the military. Moreover, States do not have much control over PMSCs when compared to soldiers because soldiers cannot quit the armed forces. There are also accountability issues that can prevent or prolong PMSCs from being brought to justice. If international laws properly include PMSCs and its personnel, to include them in conflict and peacekeeping situations, it can allow courts to hold persons accountable for the crimes they have committed.

This research is important because it has demonstrated that not only international law, but also UK law, lacks any regulations regarding PMSCs directly. It is the lack of regulations that leaves loopholes for States and PMSCs to prevent accountability for the crimes committed solely by the PMSC personnel. This could be prevented if international and UK law reformed the legislations, treaties, and other regulations to include PMSCs and its personnel.

Appendix

21st December 2015 – The author of this dissertation had a meeting with Edward Beaman for the purpose of discussing the topic of this dissertation. He agreed with the subject and suggested content matter to research.

8th February 2016 – The author of this dissertation had a meeting with Edward Beaman for the purpose of discussing the structure of this dissertation and the contents it shall contain.

15th February 2016 - The author of this dissertation had a meeting with Edward Beaman for the purpose of discussing issues relating to the Montreux Documents. At the time, the author believed that the Montreux Document might have shown familiar contents to this dissertation. However, Mr Beaman suggested that the document could allow further analysis to this dissertation considering that the author disagreed with the documents content.

25th February 2016 - The author of this dissertation had a meeting with Edward Beaman for the purpose of discussing the state of the dissertation of that time. This was to ensure that the dissertation had no drawbacks and the content of this dissertation was correct.

4th, 11th, 18th March 2016, and 6th April 2016 - The author of this dissertation had a meeting with Barbara Boothe for the purpose of proofreading the dissertation to correct any grammatical and punctuation errors that may have existed in the dissertation at those times.

Abbreviations

AP I – Additional Protocol I

FAA –Forças Armadas Angolanas (Angola’s armed forces)

GC – 1949 Geneva Convention

GC I – Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (also referred to as the ‘First’ GC)

GC II – Geneva Convention of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (also referred to as the ‘Second’ GC)

GC III – Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949 (also referred to as the ‘Third’ GC)

GC IV – Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (also referred to as the ‘Fourth’ GC)

ICC – International Criminal Court

ICJ – International Court of Justice

ICoC – International Code of Conduct for Private Security Service Providers

ICRC – International Committee of the Red Cross

IHL – International Humanitarian Law

IHRL – International Human Rights Law

MPRI - Military Professional Resources Incorporated (a PMSC)

MPLA - Movimento Popular de Libertação de Angola (The People's Movement for the Liberation of Angola – Angola’s Government)

PMC – Private Military Company / Private Military Contractors (also referred to as Private Military and Security Companies

PMSC – Private Military and Security Company (also referred to as Private Military Company / Private Military Security Company)

PSC – Private Security Company

POW – Prisoner of War

SOFA – Status of Forces Agreement

SS – Secretary of State

UNITA - União Nacional para a Independência Total de Angola (The National Union for the Total Independence of Angola)

Abstract

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[1] P.R. Kalidhass, "Determining The Status Of Private Military Companies Under International Law: A Quest To Solve Accountability Issues In Armed Conflicts" (2014) p.5 Amsterdam Law Forum <http://amsterdamlawforum.org/article/view/337/505> accessed 7 February 2016

[2] Human Rights First, 'State Of Affairs: Three Years After Nisoor Square' (Human Rights First 2010) <https://www.humanrightsfirst.org/wp-content/uploads/pdf/State_Of_Affairs.pdf> accessed 6 March 2016.

[3] James Glanz, 'Security Guard Fires From Convoy, Killing Iraqi Driver' The New York Times (2007) <http://www.nytimes.com/2014/10/23/us/blackwater-verdict.html?_r=0> accessed 7 March 2016

[4] Katia Snukal and Emily Gilbert, "War, Law, Jurisdiction, And Juridical Othering: Private Military Security Contractors And The Nisour Square Massacre" (2015) Vol.33 Environ Plan D.

[5] James Glanz, 'Security Guard Fires From Convoy, Killing Iraqi Driver' The New York Times (2007) <http://www.nytimes.com/2014/10/23/us/blackwater-verdict.html?_r=0> accessed 7 March 2016

[6] International Committee of the Red Cross (ICRC) "Montreux Document On Pertinent International Legal Obligations And Good Practices For States Related To Operations Of Private Military And Security Companies During Armed Conflict: Montreux 17 September 2008" (2008) 13 Journal of Conflict and Security Law <https://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf> accessed 16 February 2016.

[7] UNGA, UNSC ‘ Letter dated 2 October 2008 from the Permanent Representative of Switzerland to the United Nations addressed to the Secretary-General’ (2008) UN Doc A/63/467-S/2008/636

[8] Eda.admin.ch, "Participating States Of The Montreux Document" (2016) <https://www.eda.admin.ch/eda/en/fdfa/foreign-policy/international-law/international-humanitarian-law/private-military-security-companies/participating-states.html> accessed 16 February 2016.

[9] (emphasis added).

[10] International Committee of the Red Cross (ICRC) "Montreux Document On Pertinent International Legal Obligations And Good Practices For States Related To Operations Of Private Military And Security Companies During Armed Conflict: Montreux 17 September 2008" (2008) 13 Journal of Conflict and Security Law, p.9 <https://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf> accessed 16 February 2016.

[11] ICRC (n 10) p.38

[12] P.R. Kalidhass, "Determining The Status Of Private Military Companies Under International Law: A Quest To Solve Accountability Issues In Armed Conflicts" (2014) p.6 Amsterdam Law Forum <http://amsterdamlawforum.org/article/view/337/505> accessed 7 February 2016.

[13] International Committee of the Red Cross (ICRC) "Montreux Document On Pertinent International Legal Obligations And Good Practices For States Related To Operations Of Private Military And Security Companies During Armed Conflict: Montreux 17 September 2008" Statement 24 at p.36 (2008) 13 Journal of Conflict and Security Law, p.9 <https://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf> accessed

[14] ibid 37

[15] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 07 December 1978) 1125 UNTS, (Protocol I) Article 48

[16] The University Centre for International Humanitarian Law, 'Expert Meeting On Private Military Contractors: Status And State Responsibility For Their Actions' (The University Centre for International Humanitarian Law 2005) <http://www.geneva-academy.ch/docs/expert-meetings/2005/2rapport_compagnies_privees.pdf> accessed 27 February 2016.

[17] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, Article 8(2)(b)(i)

[18] Congressional Research Service, 'Status Of Forces Agreement (SOFA): What Is It, And How Has It Been Utilized?' (2012) p.3

[19] Ministry of Defence, "The Joint Service Manual Of The Law Of Armed Conflict" (United Kingdom, Ministry of Defence 2004) Joint Service Publication 383, Article 4.2.2

[20] International Committee of the Red Cross (ICRC) “Montreux Document On Pertinent International Legal Obligations And Good Practices For States Related To Operations Of Private Military And Security Companies During Armed Conflict: Montreux 17 September 2008" (2008) 13 Journal of Conflict and Security Law, p.36 <https://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf> accessed 16 February 2016.

[21]Ministry of Defence (n 19) 11.23 at p.283; see also Armed Forces Act 2006, s328; see also Reserve Forces Act 1996, Schedule 1

[22] ibid 15

[23] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 07 December 1978) 1125 UNTS, (Protocol I) Article 43

[24] C. Hoppe, 'Passing The Buck: State Responsibility For Private Military Companies' (2008) 19 European Journal of International Law p.1006.

[25] Ministry of Defence, "The Joint Service Manual Of The Law Of Armed Conflict" (United Kingdom, Ministry of Defence 2004) Joint Service Publication 383, Article 4.2.2, see also Text to (n 19)

[26] ibid 4.8, see also International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Third Geneva Convention), 12 August 1949, 75 UNTS 287, Article 4A(6),

[27] International Committee of the Red Cross (ICRC) “Montreux Document On Pertinent International Legal Obligations And Good Practices For States Related To Operations Of Private Military And Security Companies During Armed Conflict: Montreux 17 September 2008" (2008) 13 Journal of Conflict and Security Law, p.36 <https://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf> accessed 16 February 2016, p.21 and 25

[28] ibid 37

[29] ibid 39

[30] International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Third Geneva Convention), 12 August 1949, 75 UNTS 287, Article 4A(4)

[31] ibid Article 4A(2); (emphasis added)

[32] ibid Article 4A(6)

[33] The University Centre for International Humanitarian Law, 'Expert Meeting On Private Military Contractors: Status And State Responsibility For Their Actions' (The University Centre for International Humanitarian Law 2005) p.10 <http://www.geneva-academy.ch/docs/expert-meetings/2005/2rapport_compagnies_privees.pdf> accessed 27 February 2016.

[34] Michael Bothe, Karl Josef Partsch and Waldemar A Solf, New Rules For Victims Of Armed Conflict: Commentary On The Two 1977 Protocols Additional To The Geneva Conventions Of 1949 (Matinus Nijhoff Publishers 1982).

[35]Cosmin Ivanciu, "Guns For Hire: Private Military Companies And Their Status Under International Humanitarian Law" (2015) 1 Scientific Research & Education in the Air Force – AFASES, p.231

[36] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 07 December 1978) 1125 UNTS, (Protocol I) Article 47

[37] International Committee of the Red Cross (ICRC) “Montreux Document On Pertinent International Legal Obligations And Good Practices For States Related To Operations Of Private Military And Security Companies During Armed Conflict: Montreux 17 September 2008" (2008) 13 Journal of Conflict and Security Law, p.40 <https://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf> accessed 16 February 2016.; see also text to (n 20)

[38] text to (n 36) at Article 47(2)(C)

[39] International Committee of the Red Cross (ICRC) “Montreux Document On Pertinent International Legal Obligations And Good Practices For States Related To Operations Of Private Military And Security Companies During Armed Conflict: Montreux 17 September 2008" (2008) 13 Journal of Conflict and Security Law, p.37 <https://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf> accessed 16 February 2016; see also Text to (n 14)

[40] Press Association, 'Soldiers' Working Hours Not Healthy Or Sustainable, Survey Says' (2014) <http://www.theguardian.com/uk-news/2014/feb/17/soldiers-working-hours-survey> accessed 2 March 2016.

[41] SOLDIER RATES OF PAY- APRIL 2015 (1st edn, Ministry of Defence (British Army) 2015) <http://www.army.mod.uk/documents/general/Rates_of_pay_Soldier_2015.pdf> accessed 2 March 2016.

[42] Richard Norton Taylor, 'Britain Is At Centre Of Global Mercenary Industry, Says Charity' (2016) <http://www.theguardian.com/business/2016/feb/03/britain-g4s-at-centre-of-global-mercenary-industry-says-charity> accessed 2 March 2016.

[43] Foreign and Commonwealth Office, 'Freedom Of Informationact 2000 - Request Ref: 0293-12' (British Government - Foreign and Commonwealth Office 2016). p.1-2

[44] Tribepad management, 'Security Officer / Security Guard (Danvers, MA) - Danvers - United States' (Careers.g4s.com, 2016) <http://careers.g4s.com/jobs/Security-Officer-Security-Guard-Danvers-MA_62749/> accessed 2 March 2016.

[45] Foreign and Commonwealth Office (FC0), 'Freedom Of Informationact 2000 - Request Ref: 0293-12' (British Government - Foreign and Commonwealth Office 2016). p.2 <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/35480/0293-12.pdf>

[46] Text to 31

[47] Text to 30; (emphasis added)

[48] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 07 December 1978) 1125 UNTS, (Protocol I) Article 50(1)

[49] Text to (n26)

[50] Text to (27)

[51] ICRC (n 19); see also ICRC (n 21) p.14

[52] International Committee of the Red Cross (ICRC) “Montreux Document On Pertinent International Legal Obligations And Good Practices For States Related To Operations Of Private Military And Security Companies During Armed Conflict: Montreux 17 September 2008" (2008) 13 Journal of Conflict and Security Law, p.14 <https://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf> accessed 16 February 2016

[53] ibid 37

[54] ibid 39

[55] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 07 December 1978) 1125 UNTS, (Protocol I) Article 51(3)

[56] International Committee of the Red Cross (ICRC) “Montreux Document On Pertinent International Legal Obligations And Good Practices For States Related To Operations Of Private Military And Security Companies During Armed Conflict: Montreux 17 September 2008" (2008) 13 Journal of Conflict and Security Law, p.19 <https://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf> accessed 16 February 2016

[57] (Emphasis added)

[58] (Emphasis added).

[59] Foreign Policy, 'The New Unknown Soldiers Of Afghanistan And Iraq' (2016) <http://foreignpolicy.com/2015/05/29/the-new-unknown-soldiers-of-afghanistan-and-iraq/> accessed 26 February 2016.

[60] Foreign and Commonwealth Office (FCO), 'Freedom Of Informationact 2000 - Request Ref: 0293-12' (British Government - Foreign and Commonwealth Office 2016). p.1 <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/35480/0293-12.pdf>. See also Aegisworld.com, 'Aegis World' (2013) <http://www.aegisworld.com/> accessed 3 March 2016.

[61] ibid (FCO). See also Controlrisks.com, 'Control Risks | Home' (2016) <https://www.controlrisks.com/> accessed 3 March 2016.

[62] Honorlaurel.com, 'Honor & Laurel - Manejo De Riesgos En Seguridad' (2016) <http://www.honorlaurel.com/index.php/en/> accessed 3 March 2016.

[63] FCO (n 60)

[64] Garda World, 'Gardaworld International Protective Services' (2016) <http://www.garda-world.com/> accessed 3 March 2016.

[65] FCO (n 60)

[66] Academi.com, 'Academi' (2016) <https://www.academi.com/> accessed 3 March 2016.

[67] Northbridgeservices.org, 'Northbridge Services Group' (2016) <http://northbridgeservices.org/> accessed 3 March 2016.

[68] Bapsc.org.uk, 'BAPSC' (2016) <http://www.bapsc.org.uk/> accessed 3 March 2016.

[69] House of Commons, Foreign Affairs Committee, 'Private Military Compaies' (House of Commons 2002) p.9

[70] Private Security Industry Act 2001, Schedule 2(2)

[71] ibid Schedule 2(3)

[72] ibid Schedule 2(4)

[73] Bapsc.org.uk, 'BAPSC' (2016) <http://www.bapsc.org.uk/> accessed 3 March 2016.

[74] (emphasis added).

[75] BAPSC (n 68)

[76] Ulrich Petersohn, "The Impact Of Mercenaries And Private Military And Security Companies On Civil War Severity Between 1946 And 2002" (2014) Vol.40 International Interactions.

[77] Daniel G. Straub, 'Outsourcing Human Security: The Pros And Cons Of Private Security In Peacekeeping' (PhD, Naval Postgraduat School 2013) p.80. See also Peter Gantz, “The Private Sector’s Role in Peacekeeping and Peace Enforcement,” in Global Policy, GlobalPolicy.org (Washington, DC: Refugees International, 18 November 2003).

[78] ibid (Peter Gantz)

[79] John Pike, 'Croatia - Operation Storm 1995' (Globalsecurity.org, 2016) <http://www.globalsecurity.org/intell/ops/croatia.htm> accessed 4 March 2016.

[80] 'UNAVEM II' (Un.org, 2016) <http://www.un.org/en/peacekeeping/missions/past/Unavem2/UnavemIIB.htm> accessed 5 March 2016.

[81] Daniel G. Straub, 'Outsourcing Human Security: The Pros And Cons Of Private Security In Peacekeeping' (PhD, Naval Postgraduat School 2013) p.179-86

[82] ibid 186

[83] ibid 185-86

[84] Human Rights First, 'State Of Affairs: Three Years After Nisoor Square' (Human Rights First 2010) <https://www.humanrightsfirst.org/wp-content/uploads/pdf/State_Of_Affairs.pdf> accessed 6 March 2016.

[85] Jason DeYonker, Code Of Business Ethics And Conduct (2nd edn, Constellis 2015) <http://docs.constellisgroup.com/Group_Code_of_Conduct.pdf> accessed 6 March 2016 p.5

[86] ibid 6

[87] Craig Nixon, Code Of Business Ethics And Conduct (1st edn, Academi 2013) <https://academi.s3.amazonaws.com/uploads/document/document/52/ACADEMI_CodeofConduct_OCT092013.pdf> accessed 6 March 2016.

[88] Matt Apuzzo, 'Blackwater Guards Found Guilty In 2007 Iraq Killings' The New York Times (2014) <http://www.nytimes.com/2014/10/23/us/blackwater-verdict.html?_r=0> accessed 6 March 2016.

[89] 'Ballistics: The Use And Study Of Firearms' (Exploreforensics.co.uk, 2016) <http://www.exploreforensics.co.uk/ballistics-theuse-and-study-of-firearms.html> accessed 6 March 2016. See also Brian J Heard, Handbook Of Firearms And Ballistics: Examining And Interpreting Forensic Ev (John Wiley & Sons 2008).

[90] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, Article 17(2)(b)

[91] American Service-Members' Protection Act 2001

[92] James Glanz, 'Security Guard Fires From Convoy, Killing Iraqi Driver' The New York Times (2007) <http://www.nytimes.com/2014/10/23/us/blackwater-verdict.html?_r=0> accessed 7 March 2016. See Also UN Human Rights Council, Report of the Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination: Addendum: Communications to and from Governments, 13 February 2008, A/HRC/7/7/Add.1, Paragraph 6-7

[93] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 07 December 1978) 1125 UNTS, (Protocol I) Article 43(1); (emphasis added)

[94] (Emphasis added)

[95] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1

[96] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1, commentary (1) at Article 8

[97] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 07 December 1978) 1125 UNTS, (Protocol I) Article 91

[98] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, Article 25

[99] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, Article 12

[100] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, Article 5(1)

[101] Al-Quraishi et al v Nakhla et al [2010] 728 FSupp2d 702 (US District Court District of Maryland, Greenbelt Division); [2011] 657 F3d 201 (US Court of Appeals for the Fourth Circuit); [2012] US District Court District of Maryland, Greenbelt Division PJM 08-1696

[102] Al-Shimari v CACI [2009] 657 FSupp2d 700 (US District Court for the Eastern District of Virginia, Alexandria Division); [2011] US Court of Appeals for the Fourth Circuit No 10-1891; No 10-1921, 658 F3d 413; [2012] US Court of Appeals for the Fourth Circuit (en banc) No 09-1335; No 10-1891; No 10-1921; (Appeal) [2013] US Court of Appeals for the Fourth Circuit No 13-1937(L); No 13-2162; (District Court rehearing) [2013] US District Court for the Eastern District of Virginia, Alexadria Division 1:08-cv-827 (GBL/JFA)

[103] Saleh v Titan [2006] 436 FSupp2d 55 (US District Court of the District of Columbia); [2009] 580 F3d 1 (United States Court of Appeals for the DC Circuit); [2011] US Supreme Court 09-1313, 121 SCt 3055

[104] Al-Quraishi (n 101)

[105] 'Engility Corporation | Home' (Engilitycorp.com, 2016) <http://www.engilitycorp.com> accessed 26 March 2016.

[106] Al-Quraishi (n 101)

[107] Al-Quraishi et al v Nakhla et al [2010] 728 FSupp2d 702 (US District Court District of Maryland, Greenbelt Division); [2011] 657 F3d 201 (US Court of Appeals for the Fourth Circuit)

[108] Al-Quraishi et al v Nakhla et al [2010] 728 FSupp2d 702 (US District Court District of Maryland, Greenbelt Division) at p.5

[109] Al-Shimari (n 102)

[110] Saleh (n 103)

[111] text to (n 25 and 26). See also International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Third Geneva Convention), 12 August 1949, 75 UNTS 287, Article 4A(6),

[112] Al-Quraishi et al v Nakhla et al [2010] 728 FSupp2d 702 (US District Court District of Maryland, Greenbelt Division); [2011] 657 F3d 201 (US Court of Appeals for the Fourth Circuit); [2012] US District Court District of Maryland, Greenbelt Division PJM 08-1696

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